Apples to Oranges? Gendered Damages in Personal Injury Litigation: A Focus on Infant Claims

Abstract

For infant plaintiffs, personal injury litigation damage awards for loss of earning capacity are highly speculative. To quantify damages, courts rely on general population statistics and often consider the gender of the plaintiff. This article examines ways in which courts have discounted damages to minor female plaintiffs. The author notes that this discounting broadly occurs in two ways, through the use of gendered statistics and through the application of female specific contingencies. While the courts have justified gender specific damages on the basis that tort law aims to be corrective, the author argues that these practices are no more appropriate than reducing damage awards based on factors such as race or ethnicity. The author concludes that tort law is capable of evolution and it is time that the practice of gender based damages be retired.